This is an oldie, but it needs to be revisited, since the Obots still argue that Obama is eligible to serve as Commander-in-Chief.

On April 10, 2008, Sens. Patrick Leahy (D-VT) and Claire McCaskill (D-MO) introduced a resolution expressing the sense of the U.S. Senate that presidential candidate Sen. John McCain (R-AZ) was a 'natural born Citizen,' as specified in the Constitution and eligible to run for president. Sen. McCaskill knew Obama was not a U.S. Citizen, thats why she introduced this bill -- dressing it up to look like it was in Sen. John McCain's cause.

It was during the bill's hearing that Sen. Patrick Leahy, Chairman of the Senate Judiciary Committee, made the following statement:

"Because he was born to American citizens, there is no doubt in my mind that Senator McCain is a natural born citizen," said Leahy. "I expect that this will be a unanimous resolution of the Senate."

At a Judiciary Committee hearing on April 3, Leahy asked Homeland Security Secretary Michael Chertoff, himself a former Federal judge, if he had doubts that McCain was eligible to serve as President.

"My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen," Chertoff replied.

"That is mine, too," said Leahy.

What's interesting here is that Sen. Leahy, the Chairman of the Senate Judiciary, confirms that a "natural born" citizen is the child of American citizen parents.

Parents -- that's two. That's BOTH parents.

Every time the words, "citizen" and "parent," are used by Sen. Leahy and Sec. Chertoff, the plural case, "citizens" and "parents," is used. The plural case is the operative case.

""It is Sen. Leahy's opinion -- his own recorded words, in a formal Senate Resolution and on his U. S. Senate website -- that Barack Obama is not a "natural born" citizen, and therefore not eligible to serve as Commander-in-Chief, regardless of his birthplace.""

Direct link to the Obama File site: May need to scroll down to see story

"My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen," Chertoff replied.

Not a debatable proposition.

However, the assumption that this is the only way one can be a "natural-born citizen" is supported by neither the discussion quoted nor the facts of the case. The other way is to be born on the territory of the US, to anyone other than diplomats of a foreign power.

I believe at least two previous American presidents would not have been qualified had this criteria been applied.

“Leahy: Because he was born to American citizens, there is no doubt in my mind ...”

Leahy is an idiot x10.

My brother was born in Germany while my parents were stationed there. No doubt my brother was an American citizen being he was born to two American citizens, huh? That must explain why my father had to sign a waiver for my brother when he hit 18 so that he would not be drafted into the German military........ =.=

I’m assuming the Leahy quotes in the excerpt reflect the intent of the article. If this is the case, it doesn’t address the situation where it’s not the case both parents are American citizens - one of the arguments made against Obama’s eligibility.

It’s odd that a waiver was required to prevent the Germans from drafting your brother.

Is there not an understanding among countries that if their nationals give birth overseas, that the baby will be recognized as a national of the parent’s country?

By that I mean, if a French couple takes a vacation to the U.S. and the mother is seven months pregnant, and she delivers prematurely on American soil, we recognize the child as French and the couple may return back to France with the child, after certain documented verification of course to guard against child stealing and the like.

But we do let the French parents return home with the child.

Should this not also apply to illegal alien parents? If Mexico will accept the child as Mexican, which they will, why not deport the parents with their children?

Of course I’m touching upon the issue of “anchor baby” status and the wording of the U.S. Constitution.

-- Is there not an understanding among countries that if their nationals give birth overseas, that the baby will be recognized as a national of the parent's country? --

I would think so. The issue is other countries claiming to have powers over them.

There is a cottage industry for Korean and Japanese families who want their children to have the right to US education. About the time of delivery, the mothers are brought to the US. The children are born in the US, then taken back to Japan or Korea to be raised. When they are of college age, they are eligible to move to the US -as natural born citizens- to obtain their education.

The US Congress is a travesty.

-- if a French couple takes a vacation to the U.S. and the mother is seven months pregnant, and she delivers prematurely on American soil, we recognize the child as French and the couple may return back to France with the child --

The child is recognized as an American too, having dual citizenship. And according to Congress, dual citizenship is no barrier at all to having "natural born citizenship" for the constitutional purpose of becoming president of the United States. No question whatsoever.

You are quite right. Such a baby will generally be both a US and French citizen.

BTW, Winston Churchill’s mother was an American citizen. On his 21st birthday he had to choose, at the time, between being an American or a British citizen. Today he’d probably just retain dual citizenship.

It was Arthur. There is actually some evidence he may have been born a few miles across the Canadian border, leaving his “natural born” status in question.

This issue was not kept secret very well. The opposition tried to use it against him in the election, but it never got traction with the electorate. This may have partly been because he was running for veep, and it’s harder to get people worked up over the veep’s qualifications.

There was another 19th century president whose mother was born in Canada and may never have gone through a formal naturalization process. Although in at least the early 19th century a woman’s citizenship automatically changed when she married a foreigner.

And according to Congress, dual citizenship is no barrier at all to having "natural born citizenship" for the constitutional purpose of becoming president of the United States.

Not just Congress. The US executive and judicial branches have also never formally recognized dual citizenship.

IOW, any person can be both a US citizen and a citizen of some other country. We just don't recognize the other citizenship and it has no effect at all on his rights or duties as a citizen of this country.

AFAIK, this has been US policy since the Founding.

I'm sure you think this is a bad policy, but it is certainly not a recent one and has nothing to do, in origin anyway, with political correctness.

-- IOW, any person can be both a US citizen and a citizen of some other country. We just don't recognize the other citizenship .. --

Well, yes the government does. Hence the term "dual citizenship." If the government didn't recognize the other citizenship, then there would be no such thing as "dual citizenship," as the person would simply be a citizen of the US and only the US, as far as US law is concerned.

My point was that dual citizenship = "natural born US citizen" for constitutional purposes, is not questioned by any member of Congress. IOW, those babies born in the US on the "citizenship vacations," then raised by Korean or Japanese parents, in Korea or Japan, for their entire childhood and young adult life, are (according to Congress) just as much qualified to be president (by dint of being born on US soil), as a child born to US citizen parents.

I believe this policy is new, is enabled by public ignorance, and is an incorrect construction of the US Constitution. Not that the Constitution is worth spit to Congress - just saying, this is another place where the federal government is way out of its bounds.

It would have been very interesting to have lived a few years after 1776 and see the founders' reactions to have a Presidential candidate who has the following citizenship: British through Kenya and Indonesian.

Hence the term "dual citizenship." If the government didn't recognize the other citizenship, then there would be no such thing as "dual citizenship," as the person would simply be a citizen of the US and only the US, as far as US law is concerned.

I believe this is exactly the US legal position. While other countries may recognize or grant citizenship to whomever they wish, we don't pay any attention to it. It doesn't change the person's position under US law.

A Supreme Court case way back in the 19th has some bearing. A young man born in this country to Chinese non-citizen parents (Chinese immigrants weren't eligible for naturalization at the time) sued to have his citizenship recognized.

One of the dissenting justices pointed out that if we recognized him as a citizen despite his ineligible for citizenship parents, we would be opening up the presidency to "coolies," thus pretty clearly indicating this particular man was "natural born" despite his parentage.

I don't believe the other justices specifically addressed this concern in their opinions, thus implying that it was indeed a possibility and they weren't too concerned about it.

What Germany may try to do, such as draft someone into the military does not determine the citizenship of that individual.

Did your parents obtain a “Report of a U.S. Citizen Born Abroad” for your brother at the time he was born? If so, then that, witout question, certified recognition of his U.S. citizenship by law. That document proves an individual’s citizenship FROM BIRTH.

If your brother was in the States at age 18, and received a draft notice from Germany, it could have simply been ignored.

38
posted on 12/09/2009 8:19:49 AM PST
by John Leland 1789
(But then, I'm accused of just being a troll, so . . . .)

I'm familiar with the Wong Kim Ark case. It's ambiguous on the ramifications of the term of art "natural born citizen."

At any rate, I think we are in agreement as to the position of the government. It holds that term "natural born citizen" for presidential eligibility purposes means "born in the US" even if the birth is to a non-citizen mother who is vacationing in the US.

-- One of the dissenting justices pointed out that if we recognized him as a citizen despite his ineligible for citizenship parents, we would be opening up the presidency to "coolies," thus pretty clearly indicating this particular man was "natural born" despite his parentage. --

That's the dissent's take on what the majority ruled. It notes that a "citizenship is by birth location only" rule cuts in both directions:

If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect.

The logic that statutes would have no effect is based on the majority holding the 14th amendment to the Constitution mandating citizenship by birth location, and the constitution cannot be overridden by statute. Under this logic, not only in McCain not eligible to be president, he is not eligible to be a Senator because he is not a naturalized citizen. This how the dissent in Wong Kim Ark characterizes the majority holding.

The statement by the dissent that touches on eligibility to be president is itself short on analysis:

Considering the circumstances surrounding the framing of the constitution, I submit that it is unreasonable to conclude that 'natural born citizen' applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.

I also note that Wong Kim Ark marked a change in the treatment of persons born to foreigners who happened to be located in the US. In other words, the statement that the policy today is the same as it was at the founding is incorrect.

See too Minor v. Happersett, 88 U.S. 162 (1874), which discusses but (because there was no need to) also does not resolve the meaning of "natural born citizen." The issue in both cases was simple citizenship, not eligibility to be president.

I assume that we have irreconcilably different takes on the meaning of the Wong Kim Ark case, as well as on whether or not it was correctly decided. Again, my observation was that Congress has roughly adopted the view of the majority in Wong Kim Ark, by concluding (or assuming without debate) that a dual citizen can be eligible to be president of the US. My beef is with Congress, as I see it as derelict in its duty. This is just one more example.

If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect.

I would disagree with the justice. There is no reason I can see why there cannot be more than one route by which one qualifies as a "natural born" citizen.

The problem is that there has never been a definitive ruling as to what is meant by the term. We can argue about it all day and drag in various quotes from Court decisions, regulatory rulings, etc. In the end, the actual meaning of the phrase is kind of a Schrodinger's Cat. Its meaning is indeterminate until the Supreme Court has ruled.

I'm not a fan of the "living Constitution" by any means, but when terms in the Constitution are ambiguous, as this one is, some body has to make a decision what it means.

-- While other countries may recognize or grant citizenship to whomever they wish, we don't pay any attention to it. It doesn't change the person's position under US law. --

U.S. law does not mention dual nationality or require a person to choose one citizenship or another. ...

The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. citizens may conflict with U.S. law, and dual nationality may limit U.S. Government efforts to assist citizens abroad. The country where a dual national is located generally has a stronger claim to that person's allegiance.

However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.

However, notice that owing allegiance to more than one country does not, according to Congress, interfere with constitutional eligibility to be president of the United States. Born on US soil (except to a foreign diplomat)? Eligible to be president, see Wong Kim Ark and 14th amendment.

-- I would disagree with the justice. There is no reason I can see why there cannot be more than one route by which one qualifies as a "natural born" citizen. --

In this case, he is describing the application of the rule advanced by the majority - citizenship attaches by location of birth. If the constitutional rule is "citizenship attaches by location of birth," then no amount of statute can overcome the rule.

As to citizenship, of course, naturalization is available. But if "natural born" attaches solely by location (and that is the only variable favorable to Wong Kim Ark), the children born abroad, of US citizen parents, are unqualified to the presidency; and children born in the US, regardless of the citizenship of their parents (excluding diplomats), are qualified.

-- The problem is that there has never been a definitive ruling as to what is meant by the term. [natural-born citizen] --

I agree, but there is a substantial number of people who find Wong Kim Ark to be determinative on the question, and again, my initial point was that Congress deliberately avoided asking and debating the question of how dual citizenship at birth plays against the constitutional requirement of "natural born citizen." By their actions, they have held that dual citizenship is not a barrier.

I think a majority of Congress would like to amend the constitution to admit naturalized citizens to eligibility, as well.

-- when terms in the Constitution are ambiguous, as [natural born citizen] is, some body has to make a decision what it means. --

When it counted the electoral votes without raising the issue as a challenge, Congress decided that a dual citizen can also be a natural born citizen. No Court is going to touch the question. I doubt a majority of the public cares one way or the other.

"Hmmm...if young Barry was born to Stanley who had wed Barack but later Stanley discovered Barack was already married.....what does that make young Barry?"

Is there proof the marriage took place in HI? Or, did it take place in Kenya (or someplace else)?

If the marriage really did take place in HI, was it really a bigamous marriage...or was it a polygamous marriage? Was there a (legal) difference in 1960-61 (?) Hawaii?

Is there proof that Sr. was still married to a wife(s) in Kenya at the time of marriage to SADO? Or, is that an assumption?

Whatever "proof" there may exist that the marriage was in fact a bigamous one (and thus illegal) would have to be discovered in a court of law in order to make the court ordered divorce record...null and void.

So yeah, let's get that discovery going!

48
posted on 12/09/2009 10:11:26 AM PST
by rxsid
(HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))

I think you have hit the nail on the head. Since the Constitution provides no specific mechanism for determining whether a candidate meets Constitutional requirement, it by default is left up to the voters, the Electoral College and Congress.

Each has the duty to determine if a candidate is qualified. If no objections are raised by these bodies, I’m not sure I want a court stepping in and overriding them.

If we’re all so concerned about this issue, why isn’t anyone, to my knowledge, working for a policy that would prevent a future situation of this type?

All it would take is one state requiring all candidates present appropriate documentation before going on the ballot.

-- If we're all so concerned about this issue, why isn't anyone, to my knowledge, working for a policy that would prevent a future situation of this type? --

Several states are proposing statutory protocol that includes a requirement to produce evidence (e.g., show the birth certificate), rather than assert "qualified," for parties that aim to place a candidate's name on the ballot. That wouldn't cure the defect that I believe occurred in the recent election, because Obama openly acknowledges that he was a dual citizen at birth.

Plus, the current "policy" aims to prevent unqualified people from being elected. What to do if/when the elected representatives fail to be faithful to the policy? In other words, the issue isn't one of absence of policy, it's absence of principle on the part of the actors.

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